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Obla Jr. Narasimha Aiyar Vs. Gunnia V. Rangachari and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad689; (1926)50MLJ477
AppellantObla Jr. Narasimha Aiyar
RespondentGunnia V. Rangachari and anr.
Cases ReferredVannisami Thevar v. Periaswami Thevar
Excerpt:
- .....section 148 the time may be extend-ed; but under section 148 the time that can be extended is a period fixed or granted by the court. in an order under section 55(4), there is no question of the period being fixed or granted by the court, for the period is fixed by the code itself and consequently section 148 would not appear to be applicable.2. reliance is, however, placed on a decision of the privy council in burjore and bhawani pershad v. bhagana (1883) ilr 10 c 557 (pc) in which it was held that the lower court had rightly exercised its jurisdiction in extending the time provided by section 602 of the old code, which corresponds to the present order 45, rule 7. in the old code, there was no provision corresponding to section 148 and that section, which is an enabling section,.....
Judgment:

Phillips, J.

1. In this case, the petitioner was released on giving security under Section 55(4) of the Code of Civil Procedure. Under that section, he has to file his petition in insolvency within 30 days of the order but he did not do so in the present instance and applied for extension of time on the ground that he had been ill for the latter half of the one month allowed. The Lower Appellate Court has held that the Court had no jurisdiction to increase the time of 30 days allowed by Section 55. It is now contended that under Section 148 the time may be extend-ed; but under Section 148 the time that can be extended is a period fixed or granted by the Court. In an order under Section 55(4), there is no question of the period being fixed or granted by the Court, for the period is fixed by the Code itself and consequently Section 148 would not appear to be applicable.

2. Reliance is, however, placed on a decision of the Privy Council in Burjore and Bhawani Pershad v. Bhagana (1883) ILR 10 C 557 (PC) in which it was held that the Lower Court had rightly exercised its jurisdiction in extending the time provided by Section 602 of the old Code, which corresponds to the present Order 45, Rule 7. In the old Code, there was no provision corresponding to Section 148 and that section, which is an enabling section, placed certain limitations upon the power to be exercised, the chief limitation being that the period which can be extended is that which is fixed or granted by the Court, and this would impliedly exclude periods fixed by law. A Bench of this Court held in Vannisami Thevar v. Periaswami Thevar (1916) 1 MWN 179 that the time prescribed in Order 21, Rule 92 could not be extended by the Court, and a single Judge of this Court in A.A.A.O. No. 117 of 1922 held that the time under Section 55(4) could not be extended by the Court. I agree with the views expressed in these two cases and hold that the Court has no power to extend the period of one month allowed under Section 55(4).

3. Section 151 is also invoked but certaintly the circumstances of this case are not such as to warrant the exercise of such powers. No particular injustice has been committed, nor has the process of the Court been abused and even if there were power to interfere under Section 151, I certainly should decline to do so in the present circumstances.

4. The appeal is accordingly dismissed with costs.


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